deadline. Otherwise, the local government’s housing element will no longer comply with State Housing Element Law, and HCD may revoke its finding of substantial compliance pursuant to Government Code section 65585, subdivision (i). Please be aware, if the City fails to adopt a compliant housing element within one year from the statutory deadline, the element cannot be found in substantial compliance until all necessary rezones are completed pursuant to Government Code section 65583, subdivision (c)(1)(A) and Government Code section 65583.2, subdivision (c).
Several federal, state, and regional funding programs consider housing element compliance as an eligibility or ranking criteria. For example, the CalTrans Senate Bill (SB) 1 Sustainable Communities grant; the Strategic Growth Council and HCD’s Affordable Housing and Sustainable Communities programs; and HCD’s Permanent Local Housing Allocation consider housing element compliance and/or annual reporting requirements pursuant to Government Code section 65400. With a compliant housing element, the City will meet housing element requirements for these and other funding sources.
For your information, some general plan element updates are triggered by housing element adoption. HCD reminds the City to consider timing provisions and welcomes the opportunity to provide assistance. For information, please see the Technical Advisories issued by the Governor’s Office of Planning and Research at:
https://www.opr.ca.gov/planning/general-plan/guidelines.html.
We are committed to assisting the City in addressing all statutory requirements of State Housing Element Law. If you have any questions or need additional technical assistance, please contact Connor Finney, of our staff, at [email protected].
Sincerely,
Paul McDougall
Senior Program Manager
Enclosure
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APPENDIX
CITY OF PINOLE
The following changes are necessary to bring the City’s housing element into compliance with Article 10.6 of the Government Code. Accompanying each recommended change, we cite the supporting section of the Government Code.
Housing element technical assistance information is available on HCD’s website at http://www.hcd.ca.gov/community-development/housing-element/housing-elementmemos.shtml. Among other resources, the housing element section contains HCD’s latest technical assistance tool, Building Blocks for Effective Housing Elements (Building Blocks), available at http://www.hcd.ca.gov/community-development/building-blocks/index.shtml and includes the Government Code addressing State Housing Element Law and other resources.
A. Housing Needs Resources and Constraints
1. Include an analysis and documentation of household characteristics, including level of payment compared to ability to pay, housing characteristics, including overcrowding, and housing stock condition. (Gov. Code, § 65583, subd. (a)(2).) Housing Costs: While the element includes estimated rents for residents, it utilizes American Community Survey (ACS) data. The element should supplement census data with other sources (e.g., local knowledge).
2. Affirmatively further[ing] fair housing in accordance with Chapter 15 (commencing with Section 8899.50) of Division 1 of Title 2…shall include an assessment of fair housing in the jurisdiction. (Gov. Code, § 65583, subd. (c)(10)(A).) Disproportionate Housing Needs, Including Displacement Risk: The element includes some general information on persons experiencing homelessness and housing conditions but should also evaluate those needs, impacts and patterns within the City, such as areas of higher need. For homelessness, the element should examine patterns of need or areas with higher concentrations of persons experiencing homelessness, including access to transportation and services. For housing conditions, the element should discuss any areas of potentially higher needs of rehabilitation and replacement.
The element should utilize local data and knowledge such as service providers and code enforcement officials to assist this analysis.
Local Data and Knowledge: The element must include local data, knowledge, and other relevant factors to discuss and analyze any unique attributes about the City related to fair housing issues. The element should complement federal, state, and regional data with local data and knowledge where appropriate to capture emerging trends and issues, including utilizing knowledge from local and regional advocates and service providers, City staff and related local and county planning documents and should include an analysis of the history of exclusionary zoning in the City as well as how it contributes to existing patterns of segregation.
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Affirmatively Furthering Fair Housing (AFFH) and Sites Inventory: The element must analyze how the identified sites contribute to or mitigate fair housing issues. An analysis should address all of the income categories of identified sites with respect to location, the number of units by all income groups and how that affects the existing patterns for all components of the assessment of fair housing (e.g., segregation and integration, access to opportunity). If sites exacerbate conditions or isolates the RHNA by income group, the element should identify further program actions (not limited to the RHNA) that will be taken to promote equitable quality of life throughout the community (e.g., housing mobility and new opportunities in higher resource areas).
Contributing Factors to Fair Housing Issues: Based on the outcomes of a complete analysis, the element must re-assess and prioritize contributing factors to fair housing issues.
3. An inventory of land suitable and available for residential development, including vacant sites and sites having realistic and demonstrated potential for redevelopment during the planning period to meet the locality’s housing need for a designated income level, and an analysis of the relationship of zoning and public facilities and services to these sites. (Gov. Code, § 65583, subd. (a)(3).)
Progress toward the Regional Housing Needs Allocation (RHNA): The housing element appears to rely on approved and pending projects to accommodate a portion the City’s regional housing need for lower-income households. While the housing element includes the number of units for each project by income group, it should also demonstrate the affordability, specifically for moderate income units. The element should utilize anticipated or actual rents, sales prices, or other mechanisms (e.g., financing, affordability restrictions) ensuring their affordability.
Suitability of Nonvacant Sites: The element should analyze the extent that existing uses may impede additional residential development. For example, the element could describe examples (City or comparable areas) of converting existing uses to higher density residential development, include current market demand for the existing use, provide analysis of existing leases or contracts that would perpetuate the existing use or prevent additional residential development and include current information on development trends and market conditions in the City and relate those trends to the sites identified. The element should also consider indicators such as age and condition of the existing structure, existing versus allowable floor area, low improvement to land value ratio, as well as acreage of properties and support the validity of those assumptions based on recent trends or other information.
Zoning for a Variety of Housing Types:
• Emergency Shelters: For your information, if applicable, the element may need to address new requirements related to capacity and other factors for emergency shelters. For more information, including timing requirements, please see HCD’s memo at https://www.hcd.ca.gov/sites/default/files/docs/planning-andcommunity/ab2339-notice.pdf. 515 of 565
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• Permanent Supportive Housing: Supportive housing shall be a use by-right in zones where multifamily and mixed uses are permitted, including nonresidential zones permitting multifamily uses pursuant to Government Code section 65651.
The element must demonstrate compliance with this requirement and include programs as appropriate.
Electronic Sites Inventory: Pursuant to Government Code section 65583.3, subdivision (b), upon adoption of the housing element, the City must submit an electronic version of the sites inventory with its adopted housing element to [email protected].
Please note, the City must utilize standards, forms, and definitions adopted by HCD when preparing the sites inventory. Please see HCD’s housing element webpage at https://www.hcd.ca.gov/planning-and-community-development/housing-open-datatools/housing-element-download-tool for a copy of the form and instructions. The City can reach out to HCD at [email protected] for technical assistance.
4. An analysis of potential and actual governmental constraints upon the maintenance, improvement, or development of housing for all income levels, including the types of housing identified in paragraph (1) of subdivision (c), and for persons with disabilities as identified in the analysis pursuant to paragraph (7), including land use controls, building codes and their enforcement, site improvements, fees and other exactions required of developers, and local processing and permit procedures... (Gov. Code, § 65583, subd. (a)(5).).
Land Use Controls: The element must identify and analyze all relevant land use controls impacts as potential constraints and evaluate the cumulative impacts of land use controls on the cost and supply of housing, including the ability to achieve maximum densities and cost and supply of housing. Specifically, the element should analyze heights and setbacks and add or modify programs as necessary.
Parking Requirements: The element must analyze the parking requirements (pp. III-7) for multifamily residential dwellings for its impact as a potential constraint on housing and include a program to address identified constraints. For additional information, see the Building Blocks at https://www.hcd.ca.gov/planning-and-communitydevelopment/housing-elements/building-blocks/land-use-controls.
Building Codes: The element should identify any local amendments to building codes analyze impacts on housing costs.
Processing and Permit Procedures: The element must describe and analyze permit processing procedures as potential constraints on housing supply, cost, timing, feasibility and approval certainty, particularly for residential development affordable to lower-income households. The element should discuss what processes are discretionary versus ministerial and clarify whether design review is discretionary.
Further, design review processes should be analyzed for impacts on the number of units and denial of projects as well as disparities in processing times between single 516 of 565
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family and multifamily housing projects. Further, the element should analyze the total average permit processing time between single family and multifamily housing.
Housing for Persons with Disabilities: The element describes the City’s definition of family utilized in zoning then concludes its not a constraint but should include analysis to support this conclusion or consider other conclusions. For example, the family definition appears to require a single lease agreement which may be an impediment to housing for persons with disabilities. In addition, the element should describe and analyze which zones permit group homes (regardless of licensing) for six or fewer and seven or more persons and the accompanying permit procedures. An analysis should address any exclusion of group homes from residential zones and permit procedures such as conditional use permits which may act as a constraint on housing for persons with disabilities.
5. An analysis of potential and actual nongovernmental constraints upon the maintenance, improvement, or development of housing for all income levels, including… …requests to develop housing at densities below those anticipated in the analysis required by subdivision (c) of Government Code section 65583.2, and the length of time between receiving approval for a housing development and submittal of an application for building permits for that housing development that hinder the construction of a locality’s share of the regional housing need in accordance with Government Code section 65584... (Gov. Code, § 65583, subd. (a)(6).)
Approval Time and Requests for Lesser Densities: The element must address requests to develop housing at densities below those anticipated in the sites inventory and the length of time between receiving approval for housing development and submittal of application for building permits. The analysis must address any hinderances on housing development and programs should be added as appropriate.
B. Housing Programs
1. Identify actions that will be taken to make sites available during the planning period with appropriate zoning and development standards and with services and facilities to accommodate that portion of the city’s or county’s share of the regional housing need for each income level that could not be accommodated on sites identified in the inventory completed pursuant to paragraph (3) of subdivision (a) without rezoning, and to comply with the requirements of Government Code section 65584.09. Sites shall be identified as needed to facilitate and encourage the development of a variety of types of housing for all income levels, including multifamily rental housing, factory-built housing, mobilehomes, housing for agricultural employees, supportive housing, single-room occupancy units, emergency shelters, and transitional housing. (Gov. Code, § 65583, subd. (c)(1).)
As noted in Finding A3, the element does not include a complete site analysis; therefore, the adequacy of sites and zoning were not established. Based on the results of a complete sites inventory and analysis, the City may need to add or revise programs 517 of 565
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to address a shortfall of sites or zoning available to encourage a variety of housing types.
2. The Housing Element shall contain programs which assist in the development of adequate housing to meet the needs of extremely low-, very low-, low- and moderateincome households. (Gov. Code, § 65583, subd. (c)(2).) Assist in Development Programs: The element must include a program(s) with specific actions and timelines to assist in the development of housing for extremely low-, very low-, low-, and moderate-income households, including specific actions to assist housing for persons with special needs (e.g., farmworkers, elderly, homeless and persons disabilities, including developmental).
3. Address and, where appropriate and legally possible, remove governmental and nongovernmental constraints to the maintenance, improvement, and development of housing, including housing for all income levels and housing for persons with disabilities. The program shall remove constraints to, and provide reasonable accommodations for housing designed for, intended for occupancy by, or with supportive services for, persons with disabilities. (Gov. Code, § 65583, subd. (c)(3).) As noted in Findings A4 and A5, the element requires a complete analysis of potential governmental and nongovernmental constraints. Depending upon the results of that analysis, the City may need to revise or add programs and address and remove or mitigate any identified constraints.
4. Promote and affirmatively further fair housing opportunities and promote housing throughout the community or communities for all persons regardless of race, religion, sex, marital status, ancestry, national origin, color, familial status, or disability, and other characteristics... (Gov. Code, § 65583, subd. (c)(5).)
As noted in Finding A2, the element must include a complete assessment of fair housing. Based on the outcomes of that analysis, the element must add or modify programs. Goals and actions must specifically respond to the analysis and to the identified and prioritized contributing factors to fair housing issues and must be significant and meaningful enough to overcome identified patterns and trends. Actions must have specific commitment, metrics, milestones, and geographic targeting as appropriate and must address housing mobility enhancement, new housing choices and affordability in high opportunity areas, place-based strategies for community preservation and revitalization and displacement protection.
5. Develop a plan that incentivizes and promotes the creation of accessory dwelling units that can be offered at affordable rent... (Gov. Code, § 65583, subd. (c)(7).) While the element includes Program H2-4: Accessory Dwelling Units (ADUs), which includes a commitment to create a public outreach program to encourage ADU development, it does not include a timeline of when or how often the outreach will occur.
The Program should be revised to include a timeline which sets forth a schedule of actions during the planning period.
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C. Public Participation:
Local governments shall make a diligent effort to achieve public participation of all economic segments of the community in the development of the Housing Element, and the element shall describe this effort. (Gov. Code, § 65583, subd.(c)(9).) While the element includes a general summary of the public participation process. The element could describe the efforts to circulate the housing element among lower- and moderate-income households and organizations that represent them and to involve such groups and persons in the element throughout the process. In addition, the element should also summarize the public comments and describe how they were considered and incorporated into the element.
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CITY COUNCIL
REPORT 12A
DATE: APRIL 4, 2023
TO: MAYOR AND COUNCIL MEMBERS
FROM: LILLY WHALEN, COMMUNITY DEVELOPMENT DIRECTOR
SUBJECT: FRAMEWORK FOR NEW OUTDOOR DINING REGULATIONS
RECOMMENDATION
Staff recommends the City Council provide direction on establishing new regulations for outdoor dining in Pinole.
BACKGROUND
Outdoor dining extends restaurants’ seating into the sidewalk, street or underutilized areas and can enliven the street, support economic development and help re-prioritize public space for human use. The City of Pinole’s current outdoor dining program was established in 2010 with a major Zoning Code Amendment. Pursuant to Chapter 17.68 (Outdoor Sales, Display, Storage, and Outdoor Seating), outdoor dining is allowed in all zoning districts, with the exception of residential zoning districts, with approval of an Administrative Use Permit and an Encroachment Permit (if City property is involved). An Administrative Design Review or Comprehensive Design Review may also be required depending on the proposed structure. Structures under 500 square feet in size may be processed through an Administrative Design Review Permit. Structures 500 square feet and larger may be processed through a Comprehensive Design Review Permit.
Section 17.68.030 (D) outlines the requirements for permanent outdoor seating and includes standards for maintenance, accessibility, and additional off-site parking. Prior to the COVID-19 pandemic, and since 2010, the City had issued five Administrative Use Permits for outdoor dining under Section 17.68.020. See Figure 1 for a flow chart outlining the current process in the City’s Municipal Code.
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Figure 1: Current Outdoor Dining Application Process
During the COVID-19 pandemic, several businesses requested the ability to accommodate outdoor seating in order to continue to provide food service to customers while complying with local health restrictions regarding dining indoors. Similar to many other jurisdictions during the pandemic, the City Council adopted an urgency ordinance (Urgency Ordinance No. 2020-03, see Attachment A) on June 2, 2020, for the purpose of streamlining and expediting temporary outdoor seating permits to support continued operation of businesses while also complying with health orders.
Section 3 of the Urgency Ordinance defined the role of the Zoning Administrator to waive code requirements of Title 17 of the Zoning Code and establish a Temporary Use Permit (TUP) process for business owners to establish temporary outdoor dining. The process authorized by the Urgency Ordinance allowed businesses to obtain TUPs to engage in certain activities through an expedited, modified process. See Figure 2 for a flow chart outlining the TUP process in the Urgency Ordinance.
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Figure 2: Urgency Ordinance Outdoor Dining Application Process The City granted 10 TUPs through the process authorized by the Urgency Ordinance for eating establishments to provide outdoor dining. Nine of the eating establishments with TUPs located outdoor dining areas in their respective parking lots, where only one located outdoor dining in the public right-of-way (ROW). Four of the 10 businesses utilized a physical shelter structure to protect patrons from inclement weather. Three of the 10 TUPs issued under the Urgency Ordinance are still active. Restaurants that were issued a TUP are listed in Table 1, below, along with the location of the outdoor dining, if it is covered or enclosed, and if the permit is still active.
Table 1: Restaurants with a TUP for outdoor dining
Business
Name
Street
Address
Location Covered/Enclosed? Active?
Pear Street
Bistro
2395 San
Pablo Avenue
Between
Bank Building
and existing
restaurant
Covered and
enclosed
Yes
East Bay
Coffee
Company
2529 San
Pablo Avenue
Lot next door
to East Bay
Coffee
Building
Covered No, removed
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Business
Name
Street
Address
Location Covered/Enclosed? Active?
Tina’s Place 2300 San
Pablo Avenue
Private
parking lot
Covered and
enclosed
Yes
Applebee’s 1369
Fitzgerald
Drive
Private
parking lot
Not enclosed or
covered
No, removed
Antlers 2284 San
Pablo Avenue
Private
parking lot
Enclosed No, removed
Que Onda 1473
Fitzgerald
Drive
Private
parking lot
Covered No, removed
Il Grand 812 San
Pablo Avenue
In front
portion of the
building
Not enclosed or
covered
No, removed
Mel’s Diner 1441
Fitzgerald
Drive
Private
parking lot
Covered and
enclosed
No, removed
Sue’s Place 2265 Pear
Street
Parklet in
public rightof-way
Covered and
Enclosed
Yes
Section 2 and 5 of the Urgency Ordinance determined the expiration of the Temporary Use Permits. Section 2 indicated that TUPs were valid for 90 days, unless extended by the Zoning Administrator. Section 3 requires that the Ordinance remain in effect until the expiration of the declaration of local emergency by the Pinole City Council. TUPs were informally extended by the Planning Manager during the pandemic.
DISCUSSION AND ANALYSIS
The COVID-19 pandemic provided an opportunity for cities to examine their existing outdoor dining regulations and consider permanent modifications to their regulations to allow for additional safe and aesthetically pleasing outdoor dining opportunities. There are a number of benefits associated with outdoor dining. First, outdoor dining helps to define a neighborhood’s character, vibrancy and sense of place. Second, when restaurant patrons dine outdoors, public spaces such as sidewalks can become enlivened and activated, promoting a sense of community and safety by encouraging a mixture of uses and street vitality at the pedestrian scale. Associated streetscape improvements such as landscaping, aesthetically pleasing sidewalk furniture and lighting benefits these public spaces as well.
Additionally, outdoor dining may help contribute to local economic development by attracting patrons to new businesses, encouraging them to stay longer/come back more often, and can be combined or enhanced with larger community events. Lastly, open air dining may be more enticing to certain patrons than indoor dining. For example, outdoor 523 of 565
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dining may be appealing to families looking for a more casual atmosphere to dine with young children, or for pet owners to dine with their leashed dogs.
The purpose of this discussion item is to review current regulations related to outdoor dining, and if desired by the Council, develop a recommended framework for requirements applicable to outdoor seating areas on sidewalks, in street parking areas, and on public and private property. A number of communities in Contra Costa County have prepared updated outdoor dining regulations in their communities during the pandemic. Staff has prepared information highlighting new regulations from other jurisdictions transitioning temporary to long-term facilities (Attachment B) and a sampling of general outdoor dining regulations in some Contra Costa communities (see Attachment C).
In order to provide guidance to the City Council, the Planning Commission discussed outdoor dining and parklets first at their March 28, 2022 meeting. During the discussion, issues and concerns were raised regarding the temporary outdoor eating areas authorized under TUPs including the size, quality, and maintenance of the dining structures as well as adequate access to street parking, drive aisles, driveways, and open parking stalls. The Commission directed the Commission’s Ad-Hoc subcommittee to work with staff to develop a recommended framework. The Ad-Hoc subcommittee discussed this topic at their August 4, 2022 meeting. Finally, at the February 13, 2023 Planning Commission meeting the Planning Commission reviewed and refined the recommended framework of improved outdoor dining regulations for Council discussion (see Attachment D for Planning Commission minutes).
To set the stage, current outdoor dining regulations allow outdoor dining through an Administrative Use Permit (AUP) and installation of features in the public right-of-way through an Encroachment Permit. The AUP process provides a mechanism for administrative review at a public hearing to ensure compatibility with the project site and surrounding uses. An Encroachment Permit is an administrative review of proposed features in the public right-of-way for protection of the public interest, safety, and welfare.
An Administrative Design Review or Comprehensive Design Review may also require depending if there is a proposed structure and how large it is.
PMC Section 17.68.020.E.1 requires, in part, that outdoor seating may only be established where:
• There is a continuous path of travel of at least six feet in width. • Pedestrian and accessibility access and views of traffic devices is not obstructed. • Access to meters, fire hydrants, or other objects (street hardware) in the right-ofway.
Current regulations are lacking with respect to design standards for outdoor dining. Pages 17-18 in Chapter 7.0 of the Three Corridors Specific Plan provides some performance guidelines for outdoor seating, but guidance is limited in detail. These include a 6-foot clearance in the sidewalk right of way and design standards which are limited to enclosed 524 of 565
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cafes (e.g., use of clear glass, base walls no greater than 12 inches in height, and outside window heights not less than eight feet).
OUTDOOR DINING FRAMEWORK TOPICS
The Planning Commission considered the following overarching discussion topics to establish a framework for coordinated standards and guidelines for new outdoor dining regulations:
• Define categories of outdoor dining (on sidewalks: “sidewalk dining areas”, in parking spaces in the right-of-way or on public property: “parklets”, and on private property: “outdoor dining areas”)
• Establish the permitting process for outdoor dining, including opportunities for public input, annual renewal or inspections, one-time and annual fees, maintenance, and liability
• Describe the locations and/or zoning districts where different categories of outdoor dining are allowed through a permitting process • Establish standards for design and materials, size, landscaping, accessibility, circulation, lighting, safety features (such as guardrails, wheel stops, visible vertical elements) signage, heating, air circulation and outdoor furniture • Consider encouraging other elements such as public art and bicycle parking • Establish standards that address use of the area (i.e., hours, public access, and equity)
• Address parking requirements
• Address the transition from temporary outdoor dining areas to permanent dining areas (i.e., establish a transition period for existing temporary permit holders to apply for a permanent outdoor dining area).
Ultimately, the framework will be used to establish an Ordinance and guidelines that enhance the City’s current outdoor dining regulations and activates the street, with the intent to create a welcoming environment for residents and visitors when dining outdoors in the City of Pinole.
CATEGORIES OF OUTDOOR DINING
Through the Planning Commission’s discussion, three main categories of outdoor dining were discussed: sidewalk dining, private outdoor dining areas and public parklets.
Sidewalk dining areas are located on public and private sidewalks. Sometimes there is a clearly defined eating area, and other times there is not. Figure 3 provides examples of sidewalk dining in other communities. Private outdoor dining areas are located on private property that serves a restaurant or cafe, and may be incorporated in private parking lots, outdoor patios, recessed entries immediately adjacent to the public right-of-way and alleys adjacent to the operating business. Figure 4 provides examples of private outdoor dining areas in other communities.
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Lastly, parklets are typically curbside parking spaces in the right-of-way that have been converted to public seating platforms. They are intended to provide amenities, green space, or recreational areas to the public. The purpose of a community parklet is to maximize the sense of community by utilizing public spaces for aesthetic amenities to create features of interest or opportunities for informal gatherings. They have been traditionally open to any member of the public. Figure 5 shows examples of different parklets in other communities.
Figure 3: Sidewalk Dining Area Examples
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Figure 4: Outdoor Dining Area Examples
Figure 5: Parklet Examples
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PERMITTING PROCESS
The Commission is recommending different permitting processes dependent on the type of outdoor dining proposed. The following Table 2 reflects the general Planning Commission consensus on permitting processes.
Table 2: Planning Commission Consensus on Permitting Process Topic Subtopic Planning Commission
Recommendation
Staff Comment
Initial
Permitting
Process
Parklets or
Public
Property
Planning Commission
review, with
recommendation to City
Council for a final
decision.
The Municipal Code does not
contemplate larger parklet or other
structures in right-of-way or other
public property. The Code currently
only requires an Encroachment
Permit for outdoor activities within
the public right-of-way, in required
parking spaces or within designed
vehicle drive aisles, or within
required landscape planter areas.
Additional standards should be
considered for safety and
aesthetics.
Sidewalk
dining
Zoning Administrator
hearing with Zoning
Administrator providing
final decision (appeal
authority to the Planning
Commission, City
Council).
The Commission’s
recommendation is aligned with the
existing Code process. Additional
standards should be considered for
safety and aesthetics.
All other
private
outdoor
dining
areas
Zoning Administrator
hearing with Zoning
Administrator providing
final decision (appeal
authority to the Planning
Commission, City
Council).
The Commission’s
recommendation is aligned with the
existing Code process. Additional
standards should be considered for
safety and aesthetics.
Annual Review Consider annual
inspection requirement,
particularly for parklets.
This would be a new requirement
that does not currently exist in the
outdoor dining process.
Fees Recommended
application fee to be
based on staff costs. For
parklets and sidewalk
dining, consider annual
fees to compensate loss
The current fee for an
Administrative Use Permit is $875,
Administrative Design Review
Permit is $725 and a
Comprehensive Design Review
Permit is $3,700. The current fee
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Topic Subtopic Planning Commission
Recommendation
Staff Comment
of public parking spaces
and/or City property and
annual inspection (if
required).
for an Encroachment Permit varies
depending on the type of work
proposed.
Standard Conditions
of Approval
There should be
requirements for owner
maintenance and liability.
Regular/daily
maintenance and
removal of litter should
be required.
City must decide if
parklets are open to the
public or for private use.
Consider appropriate
conditions of approval for
parklets open to the
public.
The current Code requires the
following as standard conditions for
outdoor dining:
• Outdoor activity areas shall be
kept free of garbage and other
debris. Permittee shall be
responsible for, and exercise
reasonable care in, the
inspection, maintenance, and
cleanliness of the area affected
by the outdoor seating, including
any design requirements
hereafter enacted, from the
building frontage to the curb.
• Hours of operation for outdoor
activities shall be consistent with
those for the corresponding
primary use.
• Any noise generated by the
outdoor activity shall be
consistent with the city's Noise
Ordinance.
• No additional business
identification or advertising signs
for the outdoor activity may be
permitted above the maximum
allowable sign area for the
corresponding primary use.
• The outdoor seating is restricted
to the approved location and
ensure compliance with all
applicable laws including laws
against blocking the public rightof-way, health and safety laws, public cleanliness laws, and
laws regulating sale and public
consumption of alcohol.
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LOCATIONS/ZONING DISTRICTS
The Commission is recommending outdoor dining be allowed in all zoning districts that allow for restaurant use, consistent with current regulations. Staff suggests that there may be additional restrictions considered for traffic and pedestrian safety reasons that would restrict and limit parklets in specific locations in the City, such as at intersections where visibility is a concern and/or other safety hazards exist. For example, San Pablo Ave is a regionally significant route. Although it is within Pinole’s city limits and managed by the City, the City may want to consider utilizing standards published by Caltrans for parklets along highways.
AESTHETIC, COMFORT AND SAFETY STANDARDS
With respect to design of outdoor facilities, the Planning Commission is recommending the following:
• An emphasis on safety, visibility and more permanent barriers. • Consideration of more heavy weight barriers, wheel stops, wheelchair accommodations, and reflective corner elements.
• Maintaining sight distance/visibility between patrons and traffic. Coverings could have openings or plexiglass/acrylic windows/doors to ensure visibility. • Limit use of tents and guardrails, which give a temporary look. • In general, the Commission requests the Council carefully weigh regulations that further the City’s sustainability goals against the financial and operational impact on small businesses.
INCORPORATION OF OTHER FUNCTIONAL ELEMENTS
The consensus of the Planning Commission was to encourage other elements such as public art and bike parking into outdoor dining areas. The Commission recommends that opportunities for outdoor dining areas in Old Town should incorporate safe bicycle parking spaces, which also facilitates pedestrian navigation. Staff suggests the Council could consider if incorporation of sustainability features (native plants, locally-sourced or recycled/reclaimed materials, low-emission and sustainable woods/paints).
PUBLIC USE OF AREA
The Planning Commission had a robust discussion regarding consideration needed for public access to outdoor dining areas on public property. Some of the questions the Commission discussed included:
• Should parklets or other dining on public property be accessible to the public regardless of patronizing a particular business?
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• Does the public have access at all times? Can access be controlled? Should a business owner have the right during business hours to control use of the area? The Commission further discussed access being controlled through an Agreement process for parklets, or through conditions of approval regarding use of the right-of-way.
There was no strong consensus from the Commission regarding this topic.
PARKING REQUIREMENTS
The Commission discussed how to address the loss of parking from parklets and other forms of outdoor dining, but did not reach a consensus. Options discussed included allowing a maximum number of spots to be removed, not allowing any required parking for the business to be removed, or allowing required parking to be removed if excess parking capacity existed in the area. Staff has illustrated the different decision points gleaned from the Planning Commission discussion within Table 3 below. Please note the staff recommended option is identified with an asterisk.
Table 3: Parking Requirements for Outdoor Dining Use/Replacement of Parking Outdoor
Dining
Type
Current
Pinole
Regulation
s
Less
Restrictive
Option
Neutral Option More
Restrictive
Option
Parklet No Current
Regulations
No
replacement
parking
required; no
additional
parking
required
No parking
replacement required if
parklet is open to the
public and not
restricted to specific
restaurant patrons*
For every offstreet parking
space utilized by
outdoor dining
an off-site
replacement
space should be
provided
Sidewalk
Dining
Case-bycase basis;
the CDD is
allowed to
determine if
the
additional
seating
would lead
to new
demand
that
exceeds
available
supply.
No additional
parking is
required*
No additional parking
is required if current
use is compliant with
parking requirements;
if not compliant,
additional parking
required to either make
existing use compliant,
or in a ratio i.e., for
every so many sq ft of
dining space, a fraction
of an off-site parking
space is required)
Parking for
outdoor dining
required at a
ratio (i.e., for
every so many
sq ft of dining
space, a fraction
of an off-site
parking space is
required)
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City Council Report
April 4, 2023 13
Public/
Private
(Parking
Lot)
No current
regulations
Private: No
replacement
parking
required; no
additional
parking
required*
Public: City
Council
authorization
during review/
approval of
outdoor dining*
Private: No additional
parking is required if
current use is
compliant with parking
requirements; if not
compliant, additional
parking required to
either make existing
use compliant, or in a
ratio i.e., for every so
many sq ft of dining
space, a fraction of an
off-site parking space
is required)
Public: City Council
authorization during
review/approval of
outdoor dining
Private: For
every off-street
parking space
utilized by
outdoor dining
an off-site
replacement
space should be
provided
Public: City
Council
authorization
during
review/approval
of outdoor dining
*
Staff recommended option
TRANSITION PERIOD
There was consensus among the Planning Commissioners to not allow existing temporary structures to remain, and to require business owners that desired future outdoor dining to apply for permits for permanent structures. To allow businesses time to transition to a permanent structure after new regulations are in place, the Commission recommended Council consider allowing businesses to maintain their temporary use permits for six months after the adoption of any new regulations. Staff has the following additional recommendations:
• Upon adoption of any new regulations, or direction from the Council to discontinue the TUPs, staff will notify businesses about permanent facility/outdoor dining permitting processes, the date the TUPs will expire and obligations to remove the temporary structure.
• In order to remain during the transition period, temporary structures associated with the TUPs should have a safety inspection by the Building Official to ensure they are in good, usable, working order.
• Staff will work with businesses interested in permanent outdoor dining facilities to prepare applications.
Summary and Next Steps
In summary, the current Municipal Code provides a process pathway for outdoor dining on sidewalks and private outdoor areas in Pinole. However, standards related to aesthetics, safety, design and durability are lacking and could be revisited and refreshed. 532 of 565
City Council Report
April 4, 2023 14
Additionally, there is not a clear process pathway for parklets, or permanent outdoor dining, on public property.
The desired direction from Council at this stage is if staff should return with a specific proposal on modified outdoor dining regulations to support and encourage outdoor dining in the City, or not. If guidance is given to proceed with developing a specific proposal, Council may then provide specific direction related to the different types of outdoor dining and other standards/considerations such as parking and exclusive access/use. The Council may provide that direction at the March 21 meeting, or consider those items when staff returns with a specific proposal, which will incorporate best practices from other jurisdictions. The Council may also desire to direct staff to conduct outreach to businesses to determine the level of interest in more clearly defined outdoor dining processes and standards, and opportunities for parklets.
If Council is not interested in pursuing additional regulations related to outdoor dining, staff recommends the Council give staff direction on when to expire the TUPs and begin enforcing the removal of temporary outdoor dining structures.
FISCAL IMPACT
There is no fiscal impact to receiving this report. Depending on the complexity of the desired regulations, there is anticipated to be approximately 50-100 hours of Community Development and legal staff time associated with developing regulations for Council consideration.
ATTACHMENTS
A- Urgency Ordinance
B- Sampling of New Regulations from other Jurisdictions Transitioning Temporary to Long-Term Facilities
C- Sampling of General Outdoor Dining Regulations in Some Contra Costa Communities
D- Planning Commission Draft Minutes - February 13, 2022 533 of 565
ATTACHMENT A
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536 of 565
537 of 565
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539 of 565
Attachment B:
Outdoor Dining/Parklets - New Regulations Transitioning Temporary to Long-Term Facilities City name Walnut Creek Martinez Albany
Population size 70,127 37,287 20,271
Types of outdoor
dining allowed
(sidewalk,
parklets etc)
On-street parking, parking in
private lots, city-owned
property, private property,
sidewalks
Designated areas of
Downtown right of way: Along
the frontage and in parking
lots
Parking spots on street in
Solano Avenue commercial
district
Most recent date
of update to
outdoor dining
regulations
1/17/2023 4/4/2022 9/19/2022
Permitting
process for
outdoor dining
(i.e., staff level,
pc, etc.)
Applicable in Outdoor Dining
Overlay Zone.
Needs to comply with Outdoor
Dining Policy which contains
the standards.
Public Works Department
issues permit (operator permit,
or operator permit + license
agreement in ROW).
Ministerial review in ROW,
Staff design review on
property if meeting standards;
Design Review Commission
for custom standards in public
or private parking space.
Encroachment permit Encroachment permit; use of 3
angled parking spaces is subject
to Planning & Zoning
Commission recommendation
540 of 565
Attachment B:
Outdoor Dining/Parklets - New Regulations Transitioning Temporary to Long-Term Facilities City name Walnut Creek Martinez Albany
Categories of
standards/items
regulated
Construction and design
(including perimeters, heaters,
railings, design - preselected
or custom); safety; fees
Width based on business
frontage, clear path standards,
hours, applicant responsible
for set up/removal of furniture
Max number of parking spaces
used, setback from other
parking spaces, maintain access
to utilities in the sidewalk and
roadway, perimeter barriers,
platform standards, materials,
ADA compliance, fire safety
compliance, maintenance,
signage prohibited
Any special
requirements
(equity, etc)
License Agreement for use of
City property; insurance
required on City property; ongoing space use fees for City property; one time parking inlieu fee for private parking lot space in a certain district with
an established in-lieu fee
structure)
Commercial liability insurance
and add City as additional
insured
Commercial liability insurance
and add City as additional
insured
Parking
replacement
Use of public parking spaces:
$48/sf annually
541 of 565
Attachment C:
Sampling of General Outdoor Dining Regulations in Some Contra Costa Communities City name Orinda Richmond El Cerrito Concord
Population
size
19,514 116,448 25,962 125,410
Types of
outdoor dining
allowed
(sidewalk,
parklets etc)
Outdoor Dining in the
Downtown
Commercial District
Outdoor Dining Outdoor Dining in
Public Right of Way
Sidewalk cafes and
outdoor eating areas
Most recent
date of update
to outdoor
dining
regulations
2007 2008 2012
Permitting
process for
outdoor dining
(ie., staff level,
pc, etc)
Outdoor dining permit
(ministerial review)
Encroachment permit if
in the public right of way
Admin use permit and
admin design review
through Zoning
Administrator.
Encroachment permit
Sidewalk café: Admin
permit and encroachment
permit.
Outdoor Eating Area:
Minor use permit if less
than 300 feet from
residential zoning or
dwelling. Admin permit
when 300 feet or more.
542 of 565
Attachment C:
Sampling of General Outdoor Dining Regulations in Some Contra Costa Communities City name Orinda Richmond El Cerrito Concord
Categories of
standards/item
s that are
regulated
No furniture in clear
vision triangles of
intersections,
furniture materials,
umbrella vertical
clearance, heater
clearance, ADA
requirements,
pedestrian clearance,
vehicle buffer zone,
management of
furniture during nonbusiness hours
Accessory use
conducted on the same
lot or adjacent lot.
Enclosures (awnings or
umbrellas), movable
furniture and fixed
lighting, litter removal,
hours of operation,
outdining less than 200
sf does not require
additional parking,
pedestrian clearance,
25% of seating
accessible by
wheelchair.
No use of a street or
alley, pedestrian
circulation clearance,
vehicle sight
clearance, display
window and sign
visibility of adjacent
businesses, no
additinoal parking
required for outdoor
dining, signage
allowances, maintain
clean conditions,
annual renewal,
hours of operation.
General: ADA access,
business hours, lighting,
area kept clean, clear
equipment during nonoperating hours.
Sidewalk Cafes: furniture
design compatibility and
quality, fencing, furniture
clearance, furniture
portability.
Outdoor Eating: location
allowed in alleys, plazas,
courtyards, or other
interior outdoor space.
Any special
requirements
(equity, etc)
Entertainment and
amplified music may
require noise analysis
Parking
replacement
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ATTACHMENT D
1 February 13, 2023
1 DRAFT
2 3 MINUTES OF THE REGULAR MEETING
4 PINOLE PLANNING COMMISSION
5 6 February 13, 2023
7 8 THIS MEETING WAS HELD IN A HYBRID FORMAT
9 BOTH IN-PERSON AND ZOOM TELECONFERENCE
10 11
12 A. CALL TO ORDER: 7:04 p.m.
13 14 B1. PLEDGE OF ALLEGIANCE
15 16 B2. LAND ACKNOWLEDGEMENT: Before we begin, we would like to acknowledge the 17 Ohlone people, who are the traditional custodians of this land. We pay our respects to 18 the Ohlone elders, past, present and future, who call this place, Ohlone Land, the land 19 that Pinole sits upon, their home. We are proud to continue their tradition of coming 20 together and growing as a community. We thank the Ohlone community for their 21 stewardship and support, and we look forward to strengthening our ties as we continue 22 our relationship of mutual respect and understanding. 23 24 B3. ROLL CALL
25 26 Commissioners Present: Benzuly, Kurrent, Menis, Vice Chairperson Martinez, 27 Chairperson Moriarty
28 29 Commissioners Absent: Banuelos
30 31 Staff Present: David Hanham, Planning Manager
32 Alex Mog, Assistant City Attorney
33 34 C. CITIZENS TO BE HEARD
35 36 Planning Manager David Hanham reported there were no comments from the public. 37 38 D. MEETING MINUTES
39 40 1. Planning Commission Meeting Minutes from January 23, 2023. 41 42 MOTION with a Roll Call vote to approve the Planning Commission Meeting Minutes from 43 January 23, 2023, as shown.
44 45 MOTION: Benzuly SECONDED: Menis APPROVED: 5-0-1
46 ABSENT: Banuelos
47 48 E. PUBLIC HEARINGS: None
49 544 of 565
ATTACHMENT D
2 February 13, 2023
1 F. OLD BUSINESS: None
2 G. NEW BUSINESS
3 4 1. New Outdoor Dining Regulation Framework
5 Staff is seeking Planning Commission feedback regarding a framework for new 6 outdoor dining regulations on sidewalks, in street parking areas and on public and 7 private property for City Council consideration.
8 9 Planning Manager Hanham provided a PowerPoint presentation of the New Outdoor 10 Dining Regulation Framework, as outlined in the February 13, 2023 staff report. 11 12 Mr. Hanham recommended the Planning Commission consider the following discussion 13 topics that would establish the framework for coordinated standards and guidelines for 14 parklets/outdoor dining use:
15 16 • Define categories of outdoor dining (on sidewalks: “sidewalk dining in areas,” 17 parking spaces in the right-of-way or on public property: “parklets,” and on private 18 property: “outdoor dining areas”).
19 20 • Establish the permitting process for outdoor dining, including opportunities for 21 public input, annual renewal or inspections, one-time and annual fees, 22 maintenance, and liability.
23 24 • Describe the locations and/or zoning districts where different categories of outdoor 25 dining are allowed through a permitting process.
26 27 • Establish standards for design and materials, size, landscaping, accessibility, 28 circulation, lighting, safety features (such as guardrails, wheel stops, visible vertical 29 elements) signage, heating, air circulation and outdoor furniture. 30 31 • Consider encouraging other elements such as public art and bicycle parking. 32 33 • Establish standards that address use of the area (i.e., hours, public access, and 34 equity).
35 36 • Address parking requirements.
37 38 • Address the transition from temporary outdoor dining areas to permanent dining 39 areas (i.e., establish a transition period for existing temporary permit holders to 40 apply for a permanent outdoor dining area).
41 42 Mr. Hanham explained that the framework would be used to establish an ordinance and 43 guidelines to enhance the City’s current outdoor dining regulations and activities on the 44 street with the intent to create a welcoming environment for residents and visitors when 45 dining outdoors in the City of Pinole. The Planning Commission was asked to provide 46 feedback regarding the framework for New Outdoor Dining Regulations on sidewalks, in 47 street parking areas and on public and private property for City Council consideration. 48 49
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ATTACHMENT D
3 February 13, 2023
1 Responding to the Commission, Mr. Hanham stated public comment could be solicited 2 after each topic for discussion.
3 4 Assistant City Attorney Alex Mog suggested instead that public comment be solicited after 5 Planning Commissioners provide feedback on the different topics. 6 7 Mr. Hanham explained that staff would like the Planning Commission to reach a 8 consensus on the topics of discussion.
9 10 Reporting on ex-parté communications, Commissioner Menis stated he had sent out 11 information about the Planning Commission meeting to his email list and had ex-parté 12 communications with Tina Holtzclaw, the owner of Tina’s Place about this agenda item 13 topic a few months ago.
14 15 Mr. Hanham also clarified in response to the Commission with respect to the three existing 16 businesses in Pinole that had temporary use permits for outdoor eating areas, his 17 understanding the parking as part of Tina’s Place located at 2300 San Pablo Avenue was 18 part of the business, but he would have to conduct some research to verify that 19 information. As to Sue’s Café, the parklet was out in the street using public right-of-way 20 (ROW). The walkway at Pear Street Bistro was part of the bistro and part of the City of 21 Pinole, with the majority of the walkway the City’s at one time, although when sold to the 22 private owner, Pear Street Bistro, the bistro had a lease agreement to use the ROW. 23 24 At this time, the Planning Commission discussed the topics identified by staff one-by-one 25 and offered feedback.
26 27 Define categories of outdoor dining (on sidewalks: “sidewalk dining in 28 areas,” parking spaces in the right-of-way or on public property: “parklets,” 29 and on private property: “outdoor dining areas”).
30 31 Commissioner Kurrent opposed parklets utilizing the City’s ROW since there were some 32 safety issues when extending a dining area out into the street or if located adjacent to 33 parking spaces with potential conflicts with vehicular traffic. He pointed out Sue’s Café 34 was the only establishment in Pinole that had taken advantage of the opportunity to have 35 a parklet during the pandemic. He suggested there was no place in the City where parking 36 spaces should be lost to parklets. He also had concern with the maintenance and 37 ownership of parklets and suggested this was a path the City should not go down. He 38 recommended that parklets not be considered at all and the Planning Commission only 39 consider eating areas that were part of a strip mall parking lot or part of an establishment. 40 While parklets had been nice during the pandemic and had served a purpose, he 41 suggested they were no longer viable in the City of Pinole. He had no issues with sidewalk 42 dining areas or any other outdoor dining that did not encroach out into the street. 43 44 Commissioner Benzuly supported the flexibility parklets provided for eating 45 establishments. He understood the safety concerns and suggested the location of a 46 parklet should include recommendations from the Police Department on possible barriers, 47 as an example, and with the City to sort out the maintenance and liability issues as part of 48 the permitting process. He had no concerns with sidewalk dining or private outdoor dining 49 areas.
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ATTACHMENT D
4 February 13, 2023
1 2 Commissioner Menis had a slight issue with some of the examples of sidewalk dining 3 areas that appeared to encroach into the ROW and which may block access to 4 wheelchairs. He wanted to ensure that was avoided if sidewalk dining areas were allowed. 5 As to parklets, while they did encroach somewhat into the public ROW, that could be an 6 advantage for the business. He understood a number of cities had ordinances for parklets 7 that worked out well and it would have been helpful to have some of that information for 8 this presentation. If designed properly parklets would be beneficial. He suggested any 9 design standards should be explicitly part of an ordinance for parklets. He also suggested 10 parklets could act as a traffic calming and safety measure since they extended out into 11 the ROW drawing a driver’s attention and making people be more cautious and aware of 12 one’s environment.
13 14 Commissioner Menis was unaware of any issues with the parklet at Sue’s Café. He 15 suggested any parklet should be built to withstand at the least a glancing impact, but the 16 fact was they were in the public ROW and could have beneficial traffic calming impacts, 17 such as in the Old Town area of San Pablo Avenue.
18 19 Vice Chairperson Martinez supported all three ideas staff had outlined but emphasized 20 that ensuring safety was key. The City currently had one parklet at Sue’s Café and having 21 recently patronized the establishment, he reported on a close call he had experienced with 22 a passing vehicle. If parklets were permitted, there needed to be thoughtful and clearly 23 defined safety guidelines in place with a requirement for possible barriers to eliminate any 24 safety risks.
25 26 Commissioner Kurrent suggested if parklets were allowed cement barriers, as an 27 example, needed to be considered to protect diners; however, he reiterated his concerns 28 with allowing parklets at all in the City of Pinole. 29 30 Chairperson Moriarty suggested the discussion on parklets needed to continue. She did 31 not see that parklets made sense in Pinole but for an establishment like Sue’s Café, it had 32 worked well. She summarized the comments from the Commission that there was 33 consensus for sidewalk dining areas as long as there was room. There was also 34 Commission consensus for outdoor dining areas but the question was with parklets. The 35 main concerns with parklets was owner maintenance, liability and design standards to 36 ensure the parklet appeared to be more permanent than temporary. Safety was the 37 highest consideration which would determine the dimensions and materials to be used for 38 the parklet and there should be traffic calming provided to slow things down as much as 39 possible.
40 41 Establish the permitting process for outdoor dining, including opportunities 42 for public input, annual renewal or inspections, one-time and annual fees, 43 maintenance, and liability.
44 45 Mr. Hanham highlighted the options to establish a permitting process for outdoor dining 46 (parklets, outdoor dining or on private property: outdoor dining areas) which included:
47 Administrative Permit Process: (a new Outdoor Dining Permit) approved by the Planning 48 Manager/Community Development Director. A hearing process (Administrative Use 49 Permit (AUP), Conditional Use Permit (CUP), and Zoning Administrator Permit, a New 547 of 565
ATTACHMENT D
5 February 13, 2023
1 Outdoor Dining Permit) through the Zoning Administrator with appeal rights to the Planning 2 Commission.
3 A hearing process (AUP, CUP, ZA permit, with a New Outdoor Dining Permit) through the 4 Planning Commission with an appeal to the City Council or a hearing process (AUP, CUP, 5 ZA permit, a new Outdoor Dining Permit) through the Planning Commission with a 6 recommendation to the City Council.
7 8 Commissioner Benzuly suggested different permit processes for the different types of 9 outdoor dining. He clarified with the Assistant City Attorney that an Ad-Hoc Committee 10 would have no authority to make decisions. For parklets, he suggested those permits 11 should go before the Planning Commission given the concerns raised. For the other two 12 outdoor dining categories, he suggested it would be heavy handed to require Planning 13 Commission approval, and rather he recommended once a minimum standard had been 14 established administrative approval by the Planning Manager or Zoning Administrator 15 made more sense.
16 17 Commissioner Menis suggested there was no need to consider the fourth permit option 18 outlined by staff since the Planning Commission had the power to make decisions on 19 CUPs without requiring City Council approval. For outdoor dining areas, it would be 20 reasonable to have that require an administrative hearing process but for sidewalk areas 21 and for parklets, he recommended the Planning Commission process given the ROW 22 concerns and which would provide for community input. He did not see there was a need 23 for an annual review of the permit, although annual inspections would be a good idea 24 particularly for parklets, and to a lesser extent outdoor and dining areas. Fees should be 25 based on the nexus of staff costs and there should be a requirement for maintenance and 26 liability incumbent on the property owner, although he could see a split between the City 27 and the property owner in terms of liability for parklets. Maintenance for parklets should 28 be borne by the private property owner making the improvements and that should also be 29 a condition of approval.
30 31 Vice Chairperson Martinez suggested as part of any CUP any outdoor activities should be 32 insured properly and the insurance of the property should be well over $1 million removing 33 liability from the City, and that any organization/establishment that had any outdoor 34 activities should be responsible for regular/daily maintenance and removal of litter. He 35 appreciated the fact that the owners of Trader Joe’s Shopping Center conducted annual 36 maintenance and removal of litter and he wanted it made clear that if outdoor activities 37 were allowed, that space should appear new all of the time and there would be an annual 38 renewal of the use each year.
39 40 Vice Chairperson Martinez cited East Bay Coffee as an example of a business with an 41 approved outdoor venue, which required Planning Commission review and approval given 42 concerns with the use and which involved public input. He liked the idea of the permit 43 requiring Planning Commission review and approval and possibly the Planning 44 Commission Development Review Ad-Hoc Subcommittee could provide feedback prior to 45 approval by the Planning Commission.
46 47 Assistant City Attorney Mog clarified that anything that operated in the public ROW, 48 whether a sidewalk or a street, must obtain an encroachment permit from the City of Pinole 49 Public Works Department even if the use went through a CUP process. As part of the 548 of 565
ATTACHMENT D
6 February 13, 2023
1 encroachment permit process and as outlined in the Pinole Municipal Code (PMC), $2 2 million minimum in insurance was required with the City indemnified from any liability. 3 4 Commissioner Kurrent agreed there should be a more straightforward permit process for 5 outdoor dining areas than for parklets. He suggested that outdoor dining areas should go 6 through a Zoning Administrator public hearing process given there could be neighborhood 7 impacts and people who lived within 300 square feet of a use should be allowed the ability 8 to comment on any changes in their neighborhood. For parklets, he recommended a 9 public hearing process with a recommendation from the Planning Commission to the City 10 Council. In that case, the City would be giving away City property and there should be 11 some compensation to the City in the payment of annual fees to compensate the City for 12 the loss of any parking spaces along with annual inspections. Issues related to ownership 13 also needed to be addressed as it related to parklets, and he was unsure citizens could 14 be restricted from using City property to the benefit of someone else. 15 16 Chairperson Moriarty summarized the Commission consensus for outdoor dining or on 17 private property: outdoor dining areas; there be a public hearing process through the 18 Zoning Administrator with appeal rights to the Planning Commission. For sidewalk dining 19 areas, there was consensus for the same public hearing process. 20 21 Commissioner Menis pointed out that sidewalk use may impact a broader group of people 22 that may not be normally notified of a public hearing process. He asked of the cost 23 differences for an applicant for a public hearing before the Zoning Administrator as 24 opposed to the Planning Commission.
25 26 Mr. Hanham stated that administrative use permits go through staff or the Zoning 27 Administrator. A CUP process cost was about $7,300 whereas the Zoning Administrator 28 process was about $1,500, with the costs mostly related to staff time and public noticing 29 requirements.
30 31 Assistant City Attorney Mog clarified the costs for a CUP and for Zoning Administrator 32 permits pursuant to the PMC excluding staff costs or noticing requirements. 33 34 Commissioner Menis recognized if public input was desired it would impose costs on an 35 applicant regardless of whether a public hearing before the Zoning Administrator or the 36 Planning Commission. Even with the associated costs and whether an administrative or 37 Planning Commission public hearing, he suggested for sidewalk level activities that should 38 require Planning Commission review and approval since it would impact a broader swath 39 of the community.
40 41 Chairperson Moriarty suggested the specifications for sidewalk activities needed to be 42 clear since the sidewalk user would likely be a pass-through person and there was a need 43 to ensure space for people to walk and wheelchairs and the like that could be determined 44 administratively as well as by the Planning Commission and those who would likely want 45 to provide public comment, which were those who lived in the area of the use and who 46 would be affected or had an adjacent business. She suggested the actual wording could 47 be designed to ensure that pass-through people who were not impacted to the same 48 degree would be addressed.
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ATTACHMENT D
7 February 13, 2023
1 Assistant City Attorney Mog commented the City had standards that must be met and 2 which would be evaluated by the Public Works Director as part of the encroachment permit 3 process to ensure Americans with Disabilities Act (ADA) accessibility in the ROW. 4 5 Chairperson Moriarty stated she would be in favor of keeping the private outdoor dining 6 and the sidewalk at the same level with administrative approval by the Zoning 7 Administrator and with appeal rights to the Planning Commission. In terms of parklets, 8 she agreed they should require Planning Commission review with a recommendation to 9 the City Council.
10 11 There was Planning Commission consensus that parklets be reviewed by the Planning 12 Commission with a recommendation to the City Council. 13 14 Chairperson Moriarty recognized that issues related to maintenance and liability would be 15 part of the encroachment permit process. She suggested consideration of annual 16 inspections and one time annual fees should be discussed further. 17 18 In terms of parklets and in response to Commissioner Benzuly, Mr. Hanham clarified that 19 any structure that was more than 120 square feet in size or had electrical work would 20 require approval of a Building Permit. The subject discussion for this topic was how to 21 process permits with the current consensus for outdoor dining permits for sidewalks and 22 privately obtain permits as part of the Zoning Administrator permit process, with parklets 23 to be reviewed by the Planning Commission with a recommendation to the City Council. 24 25 Describe the locations and/or zoning districts where different categories of 26 outdoor dining are allowed through a permitting process. 27 28 While there was Planning Commission consensus for the different categories of outdoor 29 dining for “Commercial Establishments” or “Eating Establishments” to be allowed Citywide, 30 with the exception of Residential Districts, staff sought identification of the different Zoning 31 Districts where different categories of outdoor dining would be allowed through a 32 permitting process.
33 34 Chairperson Moriarty asked staff to make the recommendation fit into the specific Zoning 35 Districts.
36 37 Assistant City Attorney Mog explained that restaurants were defined uses in the PMC and 38 staff could tie the use to an operating restaurant, which use was not allowed in Residential 39 Zoning Districts.
40 41 The Planning Commission discussed the possibility of non-food based uses for parklets, 42 which should be discussed and there was a recommendation by Commissioner Menis to 43 confine parklets to the Old Town Subarea rather than citywide to address risks with 44 encroachment; although Commissioner Kurrent disagreed and suggested that taking 45 away a parking space was an inexpensive way to expand a business. He could foresee 46 a business owner install a parklet, with the City having limited parking spaces, and he 47 sought a restriction on parklets.
48 550 of 565
ATTACHMENT D
8 February 13, 2023
1 Mr. Hanham added that there were restrictions on outdoor storage for outdoor dining, 2 which was why this was primarily for eating establishments and restaurants. 3 4 Chairperson Moriarty summarized the Planning Commission consensus to link the 5 locations and/or zoning districts where different categories of outdoor dining were allowed 6 through a permitting process, to current eating/restaurant establishments citywide, with 7 the exception of where there was actual Commercial restaurant establishments. 8 Establish standards for design and materials, size, landscaping, 9 accessibility, circulation, lighting, safety features (such as guardrails, wheel 10 stops, visible vertical elements) signage, heating, air circulation and outdoor 11 furniture.
12 13 Mr. Hanham provided visual examples of heavy and lightweight barriers that could be 14 considered including conceptual drawings and photographs of existing parklet designs. 15 He also suggested a cover design that entirely covered the parklet could be considered 16 or a covering which included openings at the top, and he asked the Planning Commission 17 to provide feedback.
18 19 Chairperson Moriarty disliked the idea of something that was temporary, such as the 20 barriers used at Sue’s Café as compared to the more permanent barrier examples. She 21 also preferred well thought out options keeping in mind safety, visibility and a more 22 permanent solution.
23 24 Commissioner Kurrent emphasized that visibility and safety was important whether a 25 concrete barrier/bollards or some other barrier mechanism but something that protected 26 diners from an errant vehicle and allowed appropriate sight distance/visibility between 27 patrons and vehicular traffic. He suggested that a covering which consisted of Plexiglas 28 or which had an opening should be considered.
29 30 Commissioner Menis understood that the details around design and materials would 31 naturally come before a design subcommittee with the details brought back to the Planning 32 Commission for a formal vote. He suggested that being able to have the parklets covered 33 was a good idea during inclement weather. As to heating, he asked whether or not the 34 City could mandate the use of electric heating and bar the use of natural gas or propane 35 given studies around the negative health impacts of using those materials. 36 37 Assistant City Attorney Mog suggested any mandate should come from the City Council 38 and not be determined project-by-project.
39 40 Commissioner Menis suggested to make parklets more consistent with the Sustainability 41 and Safety Elements of the General Plan, the Planning Commission should encourage 42 the City Council to bar the use of fossil fuel burning elements and require the use of 43 electrical heating elements. He otherwise agreed with the need for more sturdy barriers 44 taking into account safety and visibility.
45 46 Vice Chairperson Martinez commented that other cities allowed the lower portion of the 47 parklets to be as tall as but no taller than 36 inches with a requirement to use Plexiglas or 48 acrylic material on the sides, with that area to be as clear as possible. Some cities had 49 also required a distance of six to eight feet from the floor of the parklet to the ceiling for 551 of 565
ATTACHMENT D
9 February 13, 2023
1 some type of roof or plastic covering during the winter months. Fire retardant materials 2 would have to be used and some umbrellas were required to be properly treated with fire 3 retardant materials. Other cities had also mandated that each component of the exterior 4 walls of the parklets be at a minimum weight of at last 250 pounds so they were not easily 5 knocked over, which was a nice standard that should be added. 6 7 Vice Chairperson Martinez also wanted to see the edges where the end points were 8 located come together on the street and the use of appropriate reflective taping, which 9 would be reflective during the evenings.
10 11 Commissioner Benzuly agreed with limiting the use of tents or guardrails which resulted 12 in a temporary look and rather preferred a more permanent solution as discussed. In 13 terms of heating and roofing, he was not opposed to the parklets having roofs and heating, 14 which could be an impetus for the applicant but which would meet code for a permanent 15 or semi-permanent structure.
16 17 Mr. Hanham suggested the Planning Commission identify a desired standard and allow 18 the applicant to provide options and depending on those options standards could be 19 established.
20 21 Commissioner Benzuly agreed that minimum standards must be considered to allow some 22 flexibility.
23 24 Chairperson Moriarty referenced design standards provided from the City of San Mateo, 25 which jurisdiction had criteria that addressed drainage with the platforms for the parklets 26 required to allow for curbside drainage flow; criteria for bolting which was not allowed; 27 maintenance access; platforms required to be constructed from durable materials that 28 could withstand the wear and tear of elements and pouring concrete was not allowed, as 29 examples. She suggested looking to the standards used by other jurisdictions for 30 permanent and semi-permanent parklets consistent with what the Planning Commission 31 was seeking.
32 33 Mr. Hanham suggested recommendations could be made to the City Council for a safety 34 and visibility standard, with a review of any lighting, as an example, the structure to be 35 more permanent in nature, with the micro details yet to be resolved. He again displayed 36 example criteria for heavy and lightweight barriers, acknowledged a recommendation for 37 the City Council to consider more heavyweight barriers, include additional design features 38 for visual vertical elements, and consider reflective corner elements, wheel stops, 39 wheelchair accommodations, Americans with Disability Act (ADA) accessibility and the 40 like, as discussed.
41 42 Commissioner Menis reiterated his recommendation that any heating element in the 43 parklets be electrical and not use natural gas, and that the outdoor eating areas be 44 electrical as well in order to comply with the Sustainability and Safety Elements of the 45 General Plan.
46 47 Chairperson Moriarty suggested staff could make it clear to the City Council that was 48 something the Planning Commission would like the City Council to consider. 49 552 of 565
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1 Vice Chairperson Martinez urged caution since the State had an electricity provider that 2 had consistently proven itself unreliable and if mandating that one electricity supplier which 3 had a monopoly, it could prevent a business from heating food for guests and was an area 4 that the market should determine. As an example, he had reviewed different environments 5 that used outdoor electric heaters and commented on the significant cost for such 6 equipment, which was why many restaurateurs used natural gas heaters. Mandating the 7 use of electricity could be a significant impact to small businesses. 8 9 Chairperson Moriarty suggested that this issue was a much deeper discussion as it related 10 to the City’s Climate Action Plan (CAP), and was a discussion she did not recommend the 11 Planning Commission have at this time. She asked staff to make it clear the Planning 12 Commission was asking the City Council to “consider” a prohibition on the use of natural 13 gas and that the City Council consider potential impacts to the small business owner. 14 15 Mr. Hanham agreed with the Chair’s comments and clarified that a deeper discussion of 16 electric versus natural gas would be discussed in the future. 17 18 Commissioner Menis commented the City Council had decided not to mandate citywide 19 electrification in new buildings in 2021 or in 2022, as part of Reach Codes. As a result, 20 when projects came before the Planning Commission, there had been a request for the 21 City Council to voluntarily consider Reach Codes, which had not been supported. He 22 suggested that addressing this issue on a case-by-case basis was unreasonable. 23 24 Chairperson Moriarty again suggested the City Council could “consider” the 25 recommendation, as discussed and consider it fairly. She recognized this was a bigger 26 issue but she wanted to move that discussion to the City Council level. 27 28 Consider encouraging other elements such as public art and bicycle parking 29 30 There was consensus from the Planning Commission to encourage other elements such 31 as public art and bicycle parking.
32 33 Commissioner Menis clarified with Mr. Hanham that the City did not have a current policy 34 for public art and a program could be established for parklets and outdoor dining areas. 35 36 Mr. Hanham stated he would not recommend public art as a requirement but that it be 37 “encouraged,” and acknowledged that could be a Planning Commission decision. While 38 the Planning Commission could set standards for what it wanted to see for public art in 39 parklets and outdoor dining areas, he recommended considering whether or not public art 40 should be allowed without getting into the details at this time. 41 42 Vice Chairperson Martinez commented on the bicyclists who traveled through Old Town 43 Pinole on weekends with parking on the sidewalks, which had been a challenge for 44 pedestrians to navigate and which issue needed to be addressed by creating safe bicycle 45 parking spaces achieved by working with the business owners. 46 47 Establish standards that address use of the area (i.e., hours, public access, 48 and equity)
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1 Commissioner Benzuly suggested the hours of operation should be considered on a case2 by-case basis. In terms of limiting access to the outdoor dining areas, he had not seen an 3 establishment regulate access other than pulling the furniture inside. 4 5 Mr. Hanham commented that sometimes ropes were used when the area was not in use 6 and it was more of a passive area.
7 8
9 Chairperson Moriarty referenced Contra Costa County’s regulations related to the use of 10 parklets, which required the parklet to be free and open to all members of the public 11 regardless of whether or not they patronized any particular business. 12 13 Commissioner Menis commented that this tied into the City imposing regulations on who 14 owned the parklet and who controlled access. If they were saying the public had universal 15 right of access to the parklet at certain hours at all times, they were also saying the City 16 controlled who could enter or leave it. He cited Supreme Court decisions in other contexts 17 where the right of ejection was one of the fundamental property rights, which could change 18 some of the arguments over fee structure, permitting process and the like if they were 19 saying the City had the right to control access. He understood that this would apply to 20 parklets and sidewalk dining and not as much to the private dining spaces that would be 21 in parking lots or within the physically controlled property. As to whether the public should 22 have full access to property within the public ROW regardless of improvements made, 23 limited access or no access in specific periods of time was something the City Council 24 needed to resolve as to who the spaces were for, when, how and for what purpose. As 25 an example, if a homeless person wanted to sleep in the area after the business was 26 closed for the day, was it the responsibility of the business to monitor that or make it 27 physically impossible for that access to occur, which tied into issues of equity and public 28 access.
29 30 Mr. Hanham cited the Bear Claw as an example, which establishment left its tables and 31 chairs outside 24/7 and while secured anyone could sit down at any time. As to Sue’s 32 Café, that establishment closed off its outdoor dining area after the close of business. 33 34 Assistant City Attorney Mog clarified that access could be addressed in the agreement for 35 parklets or the City Council may establish a policy for how it wanted to address any 36 condition about the use of the public ROW in exchange for the use of the property. 37 38 Commissioner Menis suggested depending on how permanent the sidewalk 39 improvements access restrictions may apply to that area as well. 40 41 Commissioner Kurrent suggested if the City were to give ownership or lease the public 42 ROW to restaurant owners the City should control who used the space. If the business 43 was leasing space from the City vis-à-vis the public ROW, he suggested there should be 44 fees commensurate with the square footage of rental, not just a freebee. 45 46 Vice Chairperson Martinez agreed and suggested if the business owner was paying for 47 the improvements the business owner should have the ability to restrict access. 48 49 Commissioner Benzuly suggested a business owner should have a say as to who sat in 554 of 565
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1 the outdoor dining area during business hours. After business hours, one should be 2 allowed to sit in that space if not impeding operations. 3 4 The Commission discussed the topic at length and Assistant City Attorney Mog explained 5 that the City could decide whatever it wanted; the area could be restricted and secured at 6 night or not with the area open to any member of the public, and all of those options were 7 open since it involved City property someone was requesting to be used. 8 9
10 Mr. Hanham commented that as the Planning Commission further discussed design 11 guidelines it would have the opportunity to take a look at this topic during a subcommittee 12 process and it may look different after feedback from the Planning Commission, City 13 Council and the public.
14 15 At this time, Mr. Hanham recommended that given this was a major issue and the Planning 16 Commission wanted to consider a lot of different ideas, the Commission could provide 17 additional feedback for a more comprehensive discussion at a later date. 18 19 Chairperson Moriarty stated the rights of the public versus the rights of the business owner 20 was a question the City Council needed to consider along with the Planning Commission. 21 22 Commissioner Menis added it should be noted for the City Council that the Planning 23 Commission had been unable to reach a consensus on this topic. 24 25 Mr. Hanham advised that staff would forward the comments from the Planning 26 Commission to the City Council so that the City Council was aware of the concerns raised. 27 28 Address parking requirements
29 30 Mr. Hanham explained that the City had conducted a parking study for the downtown 31 Commercial District on the parking being used. As an example, if Tina’s Place took up 32 four parking stalls, should a parking study be prepared to identify the viability of parking. 33 34 Commissioner Kurrent suggested there should be a re-analysis of the parking 35 requirements to ensure the use still met the PMC for required parking. 36 37 Commissioner Benzuly suggested a maximum percentage should be identified before the 38 next step of requiring a potential costly parking study. 39 40 Chairperson Moriarty understood they were speaking mostly of reducing the parking in a 41 parking lot for a private use. As an example, the Bear Claw had two parking spaces in 42 front of the business and if they were to build a parklet in the front of that business and 43 use those two parking spaces there would be a different standard. 44 45 Mr. Hanham explained that the City’s parking requirements were based off of off-street 46 parking. A business of 5,000 square feet required one parking space per every 50 square 47 feet of gross floor area off-street. In the downtown area, all parking spaces had been 48 incorporated within the square footage, which was why the City had ample parking spaces 49 in the downtown core since both off and on-street parking was used. 555 of 565
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1 2 Commissioner Kurrent reiterated that parklets should not be a giveaway. There should 3 be a cost per square footage and if the cost was market rate as opposed to nominal the 4 City would find that establishments would not want to construct parklets. He suggested 5 parklets were not a good business model for Tina’s Place and Mel’s. 6 7 Vice Chairperson Martinez wanted to be careful that the City was not seen as being non8 business friendly. He cited a number of jurisdictions that did not charge market rate for 9 parklets, and if the City of Pinole was the only jurisdiction charging those fees businesses 10 would not come to Pinole. He recommended that the City not set such a precedent 11 Chairperson Moriarty suggested if using a private lot that would impact other business 12 owners the question was whether the size of the parklet should be restricted to give back 13 for that use.
14 15 Mr. Hanham clarified that the parklet would be located in the public ROW and the only 16 area that would be losing parking spaces would be in the area within the private outdoor 17 dining area adjacent to the business, and which would be those types of businesses that 18 would affect the on-street parking requirements. The question was how to address that 19 either by a percentage or by the PMC.
20 21 Chairperson Moriarty agreed that parklets should not necessarily be a giveaway. If 22 parklets affected the availability of parking that would impact other businesses that needed 23 to be addressed in some way.
24 25 In response to Commissioner Menis, Assistant City Attorney Mog explained that if a 26 business owner had a use permit that required a certain number of parking spaces and if 27 the business was below that amount, it was at the discretion of the City whether or not to 28 allow a reduction in the required parking.
29 30 Commissioner Menis understood that much of this was policy the City Council would have 31 to make since it was ultimately a policy level decision on how the City was structured, 32 whether to prioritize people versus vehicles and weigh the values of those, which was 33 beyond the Planning Commission’s level.
34 35 Assistant City Attorney Mog clarified that parking was within the purview of the Planning 36 Commission and its role as a Planning Commission. Planning and zoning standards 37 involved recommendations to the City Council. If the Planning Commission had a 38 recommendation on how a parking standard should apply it was within the purview of the 39 Commission to provide a recommendation to the City Council to adopt all policies. 40 41 As an example, the previously discussed recommendation for a mandate on the use of 42 natural gas heaters was not a planning issue and was outside the Planning Commission’s 43 jurisdiction, while parking standards were within the purview of the Planning Commission. 44 45 Commissioner Kurrent reiterated that if parking spaces were removed the business should 46 be required to prove it could still live up to the PMC parking requirements. 47 48 Chairperson Moriarty was unsure the Planning Commission would reach a consensus on 49 this topic.
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1 2 Mr. Hanham suggested the Planning Commission could make a recommendation to the 3 City Council to evaluate the parking requirements as part of the overall design standards. 4 5 Chairperson Moriarty confirmed the consensus that the Planning Commission would make 6 a recommendation to the City Council to evaluate the parking requirements as part of the 7 overall design standards, and that outdoor dining in private areas would be considered 8 separately from a parklet taking up public ROW parking. She suggested discussion on 9 this topic needed more time along with more data.
10 11
12 Mr. Hanham agreed that until a specific project had been proposed where the required 13 parking would be identified and whether or not some parking could be reduced in different 14 areas, additional studies were needed but the Planning Commission may recommend that 15 the City Council review the parking requirements as part of this process. 16 17 Chairperson Moriarty suggested this could be a topic for the Planning Commission Ad18 Hoc Subcommittee. 19 20 Address the transition from temporary outdoor dining areas to permanent 21 dining areas (i.e., establish a transition period for existing temporary permit 22 holders to apply for a permanent outdoor dining area) 23 24 Mr. Hanham confirmed there were currently only three establishments that had been 25 issued temporary use permits under the Urgency Ordinance, which were still active and 26 which had been identified in the staff report as Tina’s Place, Sue’s Café and the Pear 27 Street Bistro.
28 29 Commissioner Kurrent suggested there was a natural time consideration in that the 30 outdoor dining areas were more popular during the summer months, and that October 1 31 was a good time to obtain a CUP if the business desired. 32 33 Mr. Hanham stated since the City had lifted the Urgency Ordinance, it could suspend the 34 temporary use permits, but if the business wanted to continue to use the outdoor dining 35 space the Planning Commission needed to consider the following: setting a timeline for 36 converting from a temporary program to a new program; work with existing businesses to 37 address a new design program and institute a potential fee deferral program for 38 compliance or consider a full amnesty program for existing businesses that wanted to have 39 an outdoor dining area.
40 41 Assistant City Attorney Mog suggested the Planning Commission provide direction on how 42 a transition should happen and whether the business should be allowed to maintain the 43 outdoor dining area or meet new standards, as described. 44 45 Commissioner Benzuly suggested the business should have nine months to a year to 46 determine and resolve all issues before transitioning from a temporary to a permanent 47 dining area. He was not a fan of an amnesty program but supported the three businesses 48 that had stuck it out and made it work, and possibly a fee deferral program could be 557 of 565
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1 considered while those businesses worked towards transitioning to a permanent solution 2 and meeting yet to be determined new design standards. 3 4 Commissioner Menis asked whether staff was aware of those cities that had shifted out of 5 the state emergency from a temporary to a more permanent model, the timeline involved 6 and whether that timeline had been effective.
7 8 Mr. Hanham stated he could not provide an answer since some communities had required 9 the temporary use to be removed within 90 to 120-days from the date of the lifting of the 10 emergency ordinance. Currently in Pinole, if a business desired to continue the outdoor 11 dining use, the business would be required to comply with Section 17.68, Outdoor Dining, 12 of the PMC and as new guidelines were established the business would have to comply 13 with those new guidelines.
14 Assistant City Attorney Mog clarified in response to the Chair that if a business were to 15 continue in its current form of providing outdoor dining in the interim of the City considering 16 new regulations, the City Council would be required to adopt something before the new 17 regulations were formally adopted.
18 19 Commissioner Menis suggested it was reasonable to give the current existing businesses 20 more time to adapt since the City needed to figure out what it wanted to do. He was 21 uncertain of the time it would take to build out a more permanent structure and suggested 22 it would be beneficial to allow the current temporary uses to continue for a period of time 23 after the adoption of a new ordinance, not just after the end of the emergency that would 24 require City Council action.
25 26 Commissioner Menis disagreed there should be amnesty for the existing structures to 27 continue on indefinitely. He wanted to eventually shift from the temporary to a more 28 permanent structure, which would result in better quality construction and something that 29 met the City’s guidelines. He suggested six months to a year from the passage of the 30 ordinance could be a possible timeline.
31 32 Vice Chairperson Martinez was also uncertain that amnesty should be considered but he 33 recognized the City was not done imposing new design guidelines. He asked staff once 34 the City’s work had been completed whether six months would be a reasonable timeline 35 to require compliance with new guidelines. He asked whether that was a consistent 36 timeline as compared to what other jurisdictions had imposed. 37 38 Mr. Hanham suggested staff work with the existing businesses to see where they were at 39 in terms of their design components. He confirmed the three establishments had been 40 informed the City was in the process of adopting a new program and it was a matter of 41 how long the temporary uses would be allowed to remain. 42 43 Vice Chairperson Martinez asked the Assistant City Attorney to provide guidance on 44 liability. He asked if an accident occurred at any of the three existing businesses whether 45 the City would be liable.
46 47 Assistant City Attorney Mog suggested there would not be issues of significant liability in 48 such a situation for the City. He acknowledged that whenever an accident occurred the 49 City was often named since it had deeper pockets, the City had a number of immunities 558 of 565
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1 and defenses available and he was not concerned about significant liability. The business 2 would also have insurance that protected the City’s ROW. 3 4 Vice Chairperson Martinez suggested if the businesses were allowed to continue business 5 as usual, he wanted assurance that the City was not liable if the business was sued and 6 Assistant City Attorney Mog reiterated the City would not be on the “hook.” 7 8 Vice Chairperson Martinez was okay with allowing the businesses to continue business 9 as usual but suggested those businesses be provided an action plan that the City was 10 creating a new program and compliance would be required at some point. 11 12
13 14 Commissioner Kurrent suggested there would be a natural end point once the weather 15 had improved and there would be a natural timeline limit of October 1 or November 1. Of 16 the three existing businesses that had outdoor seating, and citing Tina’s Place as an 17 example, he was uncertain how that business would transition to a more permanent use 18 since they had incorporated a walkway between Pear Street Bistro and the Bank of Pinole. 19 He was uncertain that would be considered outdoor dining requiring a permit from the City. 20 21 Commissioner Kurrent suggested Sue’s Café was the only business that would likely want 22 to continue with its parklet. He again suggested that a parklet was an expansion of the 23 business, and he reiterated his recommended timeline that offered a natural break. 24 25 Chairperson Moriarty stated in her opinion it depended on when the City had actual 26 regulations in place and having a hard and fast date did not make sense to her. She 27 clarified Planning Commission consensus was that no amnesty program be considered. 28 There was also Planning Commission consensus to allow the businesses to continue 29 business as usual until a target changeover date had been identified and new regulations 30 had been implemented.
31 32 Mr. Hanham explained he would have to work with the City Attorney’s Office to prepare 33 something to allow the businesses to continue and inform them of a specific time to comply 34 with a new ordinance. As an example, from the time of the adoption of a new ordinance 35 the business owner would likely have three to six months to comply, and if not, outdoor 36 dining would not be allowed.
37 38 Commissioner Menis suggested it was open to question whether the businesses were 39 aware of what the City was doing, but Mr. Hanham reiterated the three businesses 40 identified were aware that the City was starting the process for a more permanent solution. 41 42 On the discussion, Chairperson Moriarty reiterated the consensus of the Planning 43 Commission to recommend to the City Council not to allow any amnesty program. Until 44 new regulations were in place, the businesses would be status quo with the temporary 45 use permit and with the business to be permitted six months to a year to transition to a 46 permanent structure after new regulations were in place. 47 48 PUBLIC COMMENTS OPENED
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1 Mr. Hanham reported there were no comments from the public. 2 3 PUBLIC COMMENTS CLOSED
4 5 Mr. Hanham thanked the Planning Commission for the feedback. 6 7 H. CITY PLANNER’S / COMMISSIONERS’ REPORT
8 9 Mr. Hanham reported that staff was finalizing the administrative draft for the environmental 10 work for the Pinole Shores II project, with the project to be presented to the Planning 11 Commission on March 13, 2023. In other matters, use permit applications were being 12 processed for a massage therapy business and a paint booth on San Pablo Avenue, and a 13 tentative map application, which applications had been tentatively scheduled to be presented 14 to the Planning Commission in the next month.
15 In addition, the New Outdoor Dining Regulations Framework would be presented to the City 16 Council in the next few months.
17 18 Commissioner Kurrent commented on a notification he had received that the Bank of 19 America in the Appian/80 Shopping Center would close in July. He asked whether the 20 closure was temporary due to the expansion of the shopping center or permanent, and Mr. 21 Hanham advised he would have to check since the property had a new owner. 22 23 Commissioner Kurrent also asked staff the status of a pending lawsuit against the City related 24 to its Housing Element, and Assistant City Attorney Mog reported he could not go into detail 25 about the lawsuit filed against the City related to its Housing Element but the lawsuit alleged 26 the Housing Element had been adopted prematurely and was not compliant with State law. 27 He expected a revised Housing Element may come to the Planning Commission at a future 28 meeting after comments had been received from the State Department of Housing and 29 Community Development (HCD). The City Attorney’s Office would respond to the lawsuit 30 and after comments had been received from HCD it was possible the lawsuit may become 31 moot.
32 33 Vice Chairperson Martinez asked the status of a parcel on San Pablo Avenue between the 34 bank and the Community Corner which had some activity, and Mr. Hanham explained that 35 the site was for a project for outdoor space for special events and food trucks, which had 36 been approved in 2020. The project involved some undergrounding work, fencing and 37 signage.
38 39 Commissioner Menis reported he had been invited to a forum to be held with one of the 40 entities suing the City of Pinole to discuss their side of things in March and stated he had 41 been informed he could invite staff from the City to attend. He asked whether it would be an 42 issue for him to attend personally or as a Planning Commissioner and whether staff may also 43 attend the forum.
44 45 Assistant City Attorney Mog clarified that Commissioner Menis was able to attend any event 46 in his personal capacity but not representing the City or the Planning Commission in any way. 47 He requested that Commissioner Menis provide a copy of the invitation to the City Attorney’s 48 Office for review. He added that City staff generally did not attend such events. 49 560 of 565
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1 Chairperson Moriarty inquired of the status of the Adobe Road Trail breaches, a concern 2 raised by a citizen during a prior Planning Commission meeting, and Mr. Hanham reported 3 the Public Works Department was working on repairing the breaches. As part of the Pinole 4 Vista project, there was a condition that as the developer excavated soil, the City had first 5 priority for the soil which could be moved towards that area. 6 7 Chairperson Moriarty inquired of the status of the objective design standards and Parks and 8 Tree Master Plans, and was informed by Mr. Hanham that staff was preparing a schedule for 9 the objective design standards to be presented to the Planning Commission for review 10 possibly for the March 27, 2023 Planning Commission meeting. 11 12 As to the status of the Parks and Tree Master Plans, Mr. Hanham understood consultants 13 had been hired and he would have to check with staff to get more details. 14 15
16 Chairperson Moriarty commented on a tree that had been illegally removed and not replaced 17 at 2018 San Pablo Avenue and asked whether or not the property owner had been fined, 18 and Mr. Hanham understood the property owner was paying for the illegal removal of the 19 tree but the City was planting the tree.
20 21 Chairperson Moriarty asked the status of in-person meetings and quorum requirements, and 22 was informed by Assistant City Attorney Mog that Assembly Bill (AB) 361 would be eliminated 23 on February 28, 2023 as part of the Governor’s declaration to end the State of Emergency 24 regarding the pandemic.
25 26 After that time, Planning Commissioners would be required to participate in-person and 27 traditional Brown Act requirements to participate remotely would apply. There was a 28 possibility to participate remotely for just cause or emergency circumstances subject to 29 limitations.
30 31 Mr. Hanham stated he would provide the Planning Commission with a copy of the resolution 32 adopted by the City Council on this topic.
33 34 Chairperson Moriarty asked staff to consider increasing the font size for future PowerPoint 35 presentations.
36 37 I. COMMUNICATIONS
38 39 Commissioner Menus reported he had received a communication from a member of the 40 public who reported wash-out damage on the Bay Trail out of Tennent Avenue, the walking 41 area between Tennent Avenue and Pinole Shores. That individual had asked whether there 42 were any plans to repair the blocked walking path between those two points. 43 44 Mr. Hanham stated he would have to review the matter with staff and would email 45 Commissioner Menis an update, although Chairperson Moriarty stated the Bay Trail was 46 under the jurisdiction of the East Bay Regional Park District (EBRPD). 47 48 J. NEXT MEETING
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1 The next meeting of the Planning Commission to be a Regular Meeting scheduled for 2 February 27, 2023 at 7:00 p.m.
3 4 K. ADJOURNMENT: 10:45 p.m.
5 6 Transcribed by:
7 8
9 Sherri D. Lewis
10 Transcriber
11 12 Revisions by: Planning Staff
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CITY COUNCIL
REPORT
DATE: April 4, 2023
TO: MAYOR AND COUNCIL MEMBERS
FROM: JEREMY ROGERS, COMMUNITY SERVICES DIRECTOR
MARIA PICAZO, RECREATION MANAGER
SUBJECT: OPTIONS TO CELEBRATE PRIDE IN 2023
RECOMMENDATION
City staff recommends that the City Council receive a report on options to celebrate pride in the City of Pinole for the City’s 120th birthday, Juneteenth, as well as LGBTQ Pride Month, June 2023, and provide direction to staff.
BACKGROUND
At its meeting on December 6, 2022, the City Council approved a future Council agenda item to discuss options for a City-coordinated community event in June 2023 celebrating civic pride and LGBTQ pride.
Pride is defined as a feeling of deep pleasure or satisfaction derived from one’s own achievements, the achievements of those with whom one is closely associated, or from qualities or possessions that are widely admired.
Pride in Pinole
In 1823, Ygnacio Martínez, commandant of the Presidio of San Francisco, received a land grant, a 17,786 acre parcel stretching from San Pablo Bay to the Carquinez Strait, from the Mexican government. Martinez built a hacienda in Pinole Valley at the present site of Pinole Valley Park. During the 1850s, Bernardo Fernandez, a Portuguese immigrant, started a trading facility on the shores of San Pablo Bay and eventually built the historic Fernandez Mansion, which still stands today at the end of Tennent Avenue. From these early beginnings, a small but thriving community grew into the city now known as Pinole. 2023 marks the 200-year anniversary of the land grant mentioned above.
The settlement grew with the coming of the Southern Pacific Railroad in 1878 and the establishment of the California Powder Works in nearby Hercules. During this period, Pinole had an active waterfront and was a regional commercial and banking center. The first post office also opened in 1878. The City of Pinole was incorporated in 1903. The City will celebrate Pinole’s 120th birthday in June of 2023. 12B
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LGBTQ Pride
The concept of Pride Month began with the Stonewall riots, a series of riots for gay liberation that took place beginning on June 28, 1969. The riots began after a police raid at the Stonewall Inn, a gay bar located within Lower Manhattan in New York City. Activists Marsha P. Johnson, Sylvia Rivera, and Stormé DeLarverie are credited for inciting the riots.
In June 1999, President Bill Clinton declared "the anniversary of the Stonewall riots every June in America as Gay and Lesbian Pride Month". In 2011, President Barack Obama expanded the officially recognized Pride Month to include the whole of the LGBT community. In 2017, however, Donald Trump declined to continue the federal recognition of Pride Month in the United States, though he later recognized it in 2019 in a Tweet later used as a Presidential Proclamation. After taking office in 2021, President Joseph Biden recognized Pride Month and vowed to push for LGBT rights in the United States.
Juneteenth
Juneteenth is a federal holiday in the United States commemorating the emancipation of enslaved African Americans. Deriving its name from combining "June" and "nineteenth", it is celebrated on the anniversary of General Order No. 3, issued by Major General Gordon Granger on June 19, 1865, proclaiming freedom for slaves in Texas. Originating in Galveston, Juneteenth has since been observed annually in various parts of the United States, often broadly celebrating African-American culture. The day was first recognized as a federal holiday in 2021, when President Joseph Biden signed the Juneteenth National Independence Day Act into law after the efforts of Lula Briggs Galloway, Opal Lee, and others.
The holiday is considered the longest running African American holiday and has been called "America's second Independence Day". Juneteenth is usually celebrated on the third Saturday in June.
City Events in Summer 2023
During summer 2023, the City will coordinate the Concert/Movie in the Park series, which will take place on July 13th, July 27th, and August 10th (concerts) and July 7th, July 21st, August 4th (movies), the 4th of July fireworks show, the Senior Center summer craft fair on July 29th and the annual Car Show and Pancake Breakfast which will take place on June 25th.
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REVIEW AND ANALYSIS
The City has many options to celebrate civic pride, LGBTQ pride, and Juneteenth in summer 2023. City staff recommends that the City do the following:
• Issue proclamations recognizing the anniversary of the land grant, City’s incorporation, Pride Month, and Juneteenth (the City Council has already directed that the City will issue proclamations for Pride Month and Juneteenth in 2023) • Establish pages on the City website to share information on and resources regarding the anniversary of the land grant, City’s incorporation, Pride Month, and Juneteenth
• Hang a banner across San Pablo Avenue recognizing these events • Partner with the Pinole branch library to highlight materials regarding these events • Fly the Pride Flag at City Hall during the month of June (the City Council has already directed that the City will fly the Pride Flag at City hall during the month of June)
• Feature movies as part of the City’s annual Concert/Movie in the Park series highlighting these events
• Hold a festival at Fernandez Park on the afternoon of June 11, 2023 to highlight and celebrate these events, featuring two bands, food trucks, activities/games for youth, and informational exhibits by community-oriented organizations
FISCAL IMPACT
The total out-of-pocket cost to implement the activities recommended above would be $8,000 or less. Public Works staffing would be just under $900 for two employees to work that day. Police staffing would be similar to support this event. There are sufficient funds in the FY 2022/23 Community Services Department special events budget to cover these expenses.
ATTACHMENTS
None
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